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HARRISBURG – A three-judge panel of the Superior Court of Pennsylvania has dismissed the appeal from the manufacturer of a reinforcement bar which allegedly injured a man bending it on a construction site.
On July 28, Superior Court judges Jacqueline O. Shogan, Mary P. Murray and Eugene B. Strassburger III dismissed the appeal of Nucor Corporation, citing the collateral order doctrine.
Plaintiff Daniel R. Lipinski first filed suit on May 28, 2014, followed by an amended complaint on Aug. 8, 2014, claiming he suffered injuries on the job while attempting to bend a piece of steel reinforcement bar (rebar) during a construction project.
Nucor manufactured the rebar at issue and B&G Rebar & Wire, Inc. supplied the rebar for the project. Lipinski’s product liability claims sounded in negligence, strict liability, and breach of warranty.
After a long history of litigation, Nucor filed a motion for summary judgment on May 3, 2019, seeking dismissal of a cross-claim against it and claiming that because B&G’s expert opined the rebar was not defective, B&G could not meet its burden of proof for its cross-claim against Nucor. This motion was denied, as was a motion for reconsideration connected to it, leading Nucor to then appeal to the Superior Court.
In writing for the Court, Strassburger identified the collateral order doctrine as the rule governing the validity of Nucor’s appeal and stated each of the doctrine’s three tenets must be satisfied.
“The collateral order doctrine exists as an exception to the finality rule and permits immediate appeal as of right from an otherwise interlocutory order where an appellant demonstrates that the order appealed from meets the following elements: (1) It is separable from and collateral to the main cause of action; (2) The right involved is too important to be denied review; and (3) The question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost,” according to Strassburger.
Strassburger then turned to the parties’ arguments.
“Nucor and Lipinski focus their arguments on the first prong of the collateral order test. The trial court’s denial of Nucor’s motion for summary judgment is not clearly separable and collateral from the main action as it had the potential to decide one or more issues in the case. Nucor’s argument, that the malfunction theory does not apply as a matter of law, is not entirely distinct from the underlying issue in the case, i.e., whether the rebar was defective,” Strassburger said.
“Although, as Nucor argues, a degree of interrelatedness between merits issues and the question sought to be raised in the interlocutory appeal is tolerable, the claim must nevertheless be conceptually distinct from the merits of Lipiniski’s claim. Unlike the classic examples of standing and discovery, we cannot say that is the case here.”
Strassburger explained that the latter two tenets of the doctrine also went unfulfilled.
“Further, it is clear that Nucor has not satisfied the latter two prongs either: Importance of the right and irreparable loss. We do not see any compelling public policy concerns that are too important to be denied review at this stage of the proceedings,” Strassburger stated.
Strassburger ruled that the Superior Court lacked jurisdiction in the matter and along with his colleagues, threw out the appeal.
Superior Court of Pennsylvania case 1457 WDA 2019
Allegheny County Court of Common Pleas case GD-14-009079
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com